Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. (Super. Ct. No. 05ZF0120)
The opinion of the court was delivered by: O'leary, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Dean Jacobs appeals from a judgment after a jury convicted him of first degree murder and active participation in a criminal street gang, and found true he committed the murder while lying in wait, with a deadly weapon, and for the benefit of a criminal street gang. Jacobs argues: (1) the prosecutor vindictively prosecuted him on retrial by adding the lying-in-wait allegation; (2) insufficient evidence supports the lying-in-wait allegation; (3) the jury's finding on the lying-in-wait allegation may be based on a legally insufficient ground; (4) the prosecutor committed numerous instances of misconduct; (5) the court erroneously admitted excerpts of his jailhouse letters without admitting the remaining portions; (6) the court erroneously excluded evidence of his accomplice's juvenile convictions; (7) the court erroneously failed to instruct the jury two prosecution witnesses were accomplices as a matter of law; (8) the jury instructions on accomplice testimony were erroneous; (9) the jury instruction on aiding and abetting misstated the law; (10) to the extent any of his claims are forfeited, he received ineffective assistance of counsel; and (11) there was cumulative error.
Although we conclude the prosecutor erred during closing argument, and a portion of the aiding and abetting jury instructions was misleading, we conclude Jacobs was not prejudiced. None of his other contentions have merit, and we affirm the judgment.
Eliazar Diaz, a San Clemente Varrio Chico (Varrio Chico) gang member, was murdered by a member of the rival San Juan Varrio Viejo (Varrio Viejo) criminal street gang. In the year since Diaz's death, Varrio Chico tried to retaliate for Diaz's murder but was unsuccessful, and its reputation was suffering.
On the one-year anniversary of Diaz's death, there was a memorial mass. Between 9:00 and 9:30 p.m., that night, Gustavo Rivera saw a white Chevrolet Blazer with four men driving slowly through his neighborhood. Though Rivera could not determine who was sitting in the backseat, he was able to get a quick glimpse of the driver's profile. He described the driver as an 18- or 19-year-old Caucasian or Hispanic male with an "overgrown" shaved head and a bushy moustache or goatee, who was wearing a white or light-colored short-sleeve shirt.
Between 9:00 and 10:30 p.m. that night, Jacobs, William L'Hommedieu, Rafael Vasquez, Hugo Penuelas, and Aldo Martinez got into a white Chevrolet Blazer owned by Jacobs's sister.*fn1 They were going to San Juan Capistrano to look for
Varrio Viejo gang members. On the way, someone in the vehicle said they wanted to get a second knife, so they drove to a nearby alley where L'Hommedieu hid a butterfly knife. After retrieving the knife, they stopped to buy beer and continued to San Juan Capistrano.
When they arrived in San Juan Capistrano, they drove into claimed Varrio Viejo gang area and searched for gang members. They found a suspected
Varrio Viejo member walking with his girlfriend and drove next to him. Jacobs asked the man where he was from, and whether he knew another Varrio Viejo member, "Ishi." The man questioned whether they were "chuntaros," a derogatory name for Varrio Chico members. Jacobs told him they were from a Santa Ana gang and again asked the man where he could find Ishi. The man told Jacobs to leave, and Jacobs drove away.
About an hour later, Jacobs and his companions arrived at a gas station where they found Gonzales talking on a pay telephone. Gonzales asked if they were "chuntaros," just as the previous man had, and Jacobs again denied their affiliation with Varrio Chico, saying they were from Santa Ana. Jacobs asked Gonzales if he knew how to get in touch with "Ishi," who Jacobs said he met in jail. Gonzales walked away.
Jacobs and his companions saw Gonzales again later that night. Gonzales was walking by himself towards an open field when someone in the car spotted him. Jacobs made a U-turn and parked the Blazer in the field near a large tree. Jacobs and Vasquez emerged from the car with their knives and approached Gonzales. They grabbed Gonzales and stabbed him repeatedly. At some point during the stabbing, the butterfly knife Jacobs was using folded back on his hand, cutting his finger. Gonzales managed to escape Jacobs's and Vasquez's clutches and took off running. Covered in blood, Jacobs returned to the Blazer and they drove away, not knowing if Gonzales was dead.
Residents living nearby testified they heard two Hispanic men angrily yelling in Spanish (with Mexican accents) in the field. One was about 5'7", the other about 5'5", and they wore baggy sweaters and jeans, while one wore a baseball cap.
Jacobs and his companions returned to San Clemente. On the way, Jacobs handed the butterfly knife to L'Hommedieu, who cleaned it with a rag or his shirt prior to Vasquez throwing it onto the freeway. They drove straight to fellow Varrio Chico gang member Ramon Uribe's apartment. Upon arrival, Jacobs boasted about the stabbing and stripped off his blood-soaked clothing. He cleaned himself at an outside spigot while another Varrio Chico gang member, Richard Salazar, attempted to clean the blood from Jacobs's shoes.
Jacobs's shouting stirred Uribe's neighbors, who called the police. When a marked police car drove down Uribe's street, Johnny Roy, another Varrio Chico gang member, yelled "cops" in Spanish and everyone fled.
When the officers left Uribe's neighborhood later that night, Jacobs, Salazar, Uribe, and Roy returned to get the Blazer before they headed to another apartment complex. On the way, Salazar noticed there was blood on the passenger side door handle, the passenger side window, the center console, and the steering wheel. At the apartment complex, Jacobs and his passengers attempted to clean the blood from the car, but they could not clean it all.
A woman living near the crime scene discovered Gonzales's bloody backpack at a nearby bus stop the next morning. She informed the police, and the police discovered Gonzales's body nearby. A knife was stuck in the ground near the body and a lengthy trail of blood led across the street.
Forensic investigators determined Gonzales had been stabbed 13 times and bled to death. The wounds penetrated Gonzales's heart, lungs, diaphragm, liver, and spleen. Many of them would have been fatal on their own, though not instantaneously.
A few days later, police searched Jacobs's home and the Blazer. They found a T-shirt, a pair of socks, and a pair of tennis shoes. Police seized all the items and impounded the Blazer. Police also saw Jacobs had a large cut on his finger. Police arrested Jacobs and photographed his hand.
Forensic scientists tested the items for DNA evidence and fingerprints. Though the bloodstains on Jacobs's shoes were faint, as though they had been washed, the scientists determined the shoes contained a mixture of blood from both Jacobs and Gonzales. Jacobs's socks contained only Gonzales's blood. DNA samples taken from Gonzales's backpack matched Gonzales alone.
Forensic scientists also examined the Blazer. Tree leaves and seeds taken from the floor and door jambs of the Blazer were consistent with plant material from the California pepper tree found near the crime scene and throughout Southern California. There was also red paint on the right front wheel that matched the red paint color used on the curb at a bus stop near the crime scene. Finally, blood samples taken from numerous places inside the Blazer matched Jacobs's DNA profile and were inconsistent with Gonzales's DNA profile.
An amended indictment charged Jacobs, L'Hommedieu, Uribe, and others not relevant to the discussion, with conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a)),*fn2 murder (§ 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). As to the murder and conspiracy to commit murder counts, the amended indictment alleged Jacobs, L'Hommedieu, and Uribe committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) As to the murder count, the amended indictment alleged Jacobs and L'Hommedieu committed the murder with a deadly weapon. (§ 12022, subd. (b)(1).)
The First Trial and Appeal
The first trial elicited the facts above, and included testimony from two Varrio Chico gang members who were granted immunity, Roy and Salazar. Roy was a convicted felon who had been imprisoned for numerous crimes, including receiving stolen property, unlawful sex with a minor, and making terrorist threats. Roy originally lied to the police saying two other Varrio Chico members had killed Gonzales. He later changed his story to implicate Vasquez and L'Hommedieu. Roy testified before the grand jury, which he later admitted he also lied to. At trial, Roy testified he, Salazar, and a number of other Varrio Chico gang members went to Uribe's apartment on the night Gonzales was killed. Jacobs, who was completely covered in blood, and his companions arrived at the apartment later that night. Jacobs stripped off his light grey shirt and work clothes, and Roy disposed of them. Minutes later, Roy saw a patrol car in the neighborhood, so he shouted a warning to the rest of the gang, who quickly dispersed. Roy hid behind the Blazer, which he noticed had blood on the bumper. When the officers left, Roy ran down the street only to find Vasquez and L'Hommedieu, who had blood on his grey sweater. Later that night, Roy saw Jacobs, Uribe, and Salazar drive by in the Blazer, so he hitched a ride with them.
Salazar also testified in exchange for immunity. Prior to trial, Salazar, like Roy, claimed only L'Hommedieu and Vasquez were involved in the murder. At trial, Salazar testified Jacobs and his companions returned to Uribe's apartment around 8:45 p.m., and Jacobs was loudly yelling they had stabbed a Varrio Viejo gang member. While Jacobs was changing out of his bloody clothes, he told Salazar he stabbed Gonzales as he turned to use a pay telephone to call Ishi. Salazar said he washed the blood from Jacobs's shoes, and he and Jacobs ran away together when the police arrived. Salazar testified he alone cleaned the blood from Jacobs's Blazer while Jacobs watched.
A jury convicted Jacobs, L'Hommedieu, and Uribe of conspiracy to commit murder, and found they committed the offense for the benefit of a criminal street gang. The jury convicted Jacobs of first degree murder and found true he used a knife and committed the offense for the benefit of a criminal street gang. The jury convicted L'Hommedieu of second degree murder and found true he committed the offense for the benefit of a criminal street gang. The jury was unable to reach a unanimous verdict as to the counts alleged against Uribe, and the trial court declared a mistrial.
Jacobs, L'Hommedieu, and Uribe appealed, contending the trial court improperly required them to appear shackled together at trial and the court erroneously denied Jacobs's and L'Hommedieu's Sixth Amendment confrontation right by admitting Uribe's hearsay statements.*fn3 (People v. Jacobs (Oct. 17, 2001, G026510) [nonpub. opn. at p. 11].) In our prior nonpublished opinion we concluded shackling them together was reversible error because it improperly influenced the jurors by suggesting they were dangerous individuals, which may have lead to their convictions despite the prosecution's relatively weak case. We opined Roy and Salazar were "credibility-challenged." (People v. Jacobs, supra, G026510, at p. 17.) We also held the admission of Uribe's hearsay statements was reversible error because even though the statements were redacted, testimony from the prosecutor's other witnesses allowed the jury to sufficiently fill in the gaps and robbed Jacobs and L'Hommedieu of their Sixth Amendment confrontation rights. (People v. Jacobs, supra, G026510, at pp. 18-21.) We reversed their convictions and remanded for retrial. (People v. Jacobs, supra, G026510, at p. 23.)
Eight years after the offense, an indictment charged Jacobs with murder (§ 187, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The indictment alleged Jacobs committed the murder while lying in wait (§ 190.2,
subd. (a)(15)), for the benefit of a criminal street gang (§ 186.22, subd. (b)), and while using a deadly weapon (§ 12022, subd. (b)(1)).
Prior to trial, Jacobs filed a motion to dismiss for vindictive prosecution. The trial court denied his motion, and Jacobs sought a writ of prohibition/mandate from this court. We denied the writ petition.
Trial commenced and the prosecutor offered the same facts outlined above, though the prosecutor offered two new witnesses. As relevant to our discussion, the prosecutor introduced the testimony of L'Hommedieu and Uribe, Jacobs's co-defendants in the first trial, whom had since been offered immunity in exchange for their testimony.
L'Hommedieu testified he was a Varrio Chico associate who had been childhood friends with Vasquez, Martinez, and Penuelas--though he barely knew Jacobs, Roy, or Salazar, and had only seen them in passing.*fn4 L'Hommedieu stated he was at Uribe's home partying when Vasquez told him to come have some fun with a few of the gang members. L'Hommedieu, thinking they were going to get girls, decided to join them. He testified he was in the backseat of the Blazer at the time the killing took place, but turned his head away as soon as he heard Gonzales scream. He never saw anyone stab Gonzales. L'Hommedieu also testified he walked home alone minutes after he arrived at Uribe's apartment. He threw away his bloodied undershirt as he left, leaving on his white T-shirt and black jacket.
Uribe testified there were a number of Varrio Chico gang members in his apartment partying. L'Hommedieu was showing everyone his switchblade knife when Jacobs announced, "Let's go to San Juan."*fn5 Jacobs told everyone one knife was not going to be enough so Uribe gave Jacobs several kitchen knives that were "the biggest knives [he'd] ever seen," measuring around a foot long. According to Uribe, he and several other Varrio Chico gang members remained in his apartment while Jacobs and his group were gone for nearly two hours. When Jacobs and his companions returned, Uribe noticed L'Hommedieu, Vasquez, and Jacobs were bloodied, and there was a large cut on Jacobs's finger. While other Varrio Chico members were cleaning the blood off Jacobs, Uribe examined the Blazer and found blood on the driver's side windshield and interior door handle, and the passenger side of the vehicle.
Salazar and Roy testified again at the second trial. Salazar testified in substantially the same manner as he had in the first trial, including that there was no talk of retaliation at Uribe's apartment that night. Roy testified he fled when the police arrived but soon caught up with L'Hommedieu and Vasquez, who were walking to the beach with a bag of bloodied clothing in order to dispose of the evidence. Roy further testified he did not ride in the Blazer with Jacobs later that evening, though he previously testified he did.
The prosecutor offered, and the trial court admitted into evidence, excerpts of letters Jacobs wrote to Varrio Chico gang members while he was in prison in 1996 and 1997. In the first letter, from May 1996, Jacobs lamented the sorry state of Varrio Chico and its loss of toughness and respect. In the second letter, from January 1997, Jacobs expressed his desire to regain his gang's good reputation, and he would do it himself if others were not willing to help. In the third letter, from May 1997, Jacobs stated members of other gangs no longer wanted to associate with Varrio Chico because of its bad reputation. The court also admitted a letter Jacobs wrote to Ivan Lepe in 1993 where he stated, "Daddy right here has already blasted for the Varrio [three] times."
Jacobs testified in his own defense. His testimony painted a dramatically different picture of the events. Jacobs testified he was paroled in 1997, about eight weeks before the murder. Although he tried to straighten his life out, he eventually met up with his old Varrio Chico friends. Jacobs had never met L'Hommedieu, Vasquez, Penuelas, or Martinez because they were younger and belonged to a clique in the gang with Roy and Salazar.
As a parolee, Jacobs could be pulled over and searched at any time while driving. Jacobs's sister, who owned the white Blazer, refused to let Jacobs drive her car so he drove his father's car, a Pontiac Bonneville. When his father loaned the Bonneville to a family friend during the weekend of the killing, Jacobs drove the Blazer. Jacobs had been snorting methamphetamine the day before the killing. While he was driving the Blazer, he developed a bloody nose and sneezed, dispersing his blood throughout the vehicle's driver's side.
Jacobs went to Uribe's apartment after he got off work at 5 p.m., on the night of the offense. He stayed for a couple of hours, went to Albertsons to buy beer for Uribe's father, and returned home at approximately 8 p.m., where he ate dinner and retired to his bedroom for the night.
Sometime between 9 p.m. and 10 p.m. that night, Roy called Jacobs and asked him to bring two changes of clothes to a nearby parking lot. Jacobs dressed himself in a T-shirt, shorts, socks, and white tennis shoes and brought the clothes to the parking lot. Upon arrival, Jacobs saw a light-colored Ford Bronco parked under a carport. As he approached the car, he saw Roy, Salazar, L'Hommedieu, Vasquez, and one other person. L'Hommedieu and Vasquez were covered in blood and had requested the change of clothes. Jacobs gave them the bag of clothes and they stripped off their bloodied garments, throwing them at Jacobs's feet. Jacobs piled up the bloody clothes, threw them away in a nearby dumpster, and drove home.
The investigators came to Jacobs's house three days after the murder. They impounded Jacobs's socks and shoes and noticed Jacobs had three or four cuts on his hands, which Jacobs told them he received from a sharp faucet at work several days before the murder. The investigator asked him where he had been on the night of the offense, at which point Jacobs lied and said he was at home because he was afraid he had violated parole. Law enforcement officers arrested Jacobs four days after the offense for a parole violation.
Investigators searched the Blazer and recovered 23 fingerprints. The fingerprints were compared to all the Varrio Chico members, but the prints only matched Jacobs, Uribe, and one other gang member who was not present on the day of the offense. Jacobs's prints, however, were not found anywhere inside the Blazer, but only on the vehicle's exterior.
Other defense witnesses testified they heard yelling in Spanish on the night of the killing and saw short men dressed in clothing dissimilar to Jacobs's work uniform fighting in the lot. Jacobs's co-worker testified the sinks at the shop where Jacobs worked were sharp and corroded, and could easily cut through flesh. Jacobs's mother testified none of Jacobs's work uniforms were missing, and a worker at the uniform shop that supplied Jacobs's uniform said his account had been credited for one set of missing pants and shirt--though he could not remember whether the items were found or merely credited to their account. Jacobs's mother also testified Jacobs knew the Gonzales family and was friends with Gonzales's brother. The jury also heard evidence Jacobs's sister had a habit of striking curbs while parking and that many of the curbs at her high school and throughout San Clemente were painted with the same red color extracted from the Blazer's wheels. Jacobs's sister also testified she did not clean her Blazer, and she did not remember damaging her car's wheel.
Both parties introduced expert testimony concerning when Jacobs had injured his hand. According to the prosecutor's expert, a forensic pathologist, it was impossible to determine the age of a wound from a photograph, but he said it was around three to seven days old, though it could be as old as 10 days depending on the size of the original wound. Jacobs's expert, an emergency room physician, concluded the wound was between seven and 10 days old, and it was impossible the wound could have only been three days old when investigators photographed the wound.
The jury convicted Jacobs of all charges, and found true all the enhancements. The trial court sentenced Jacobs to life in prison without the possibility of parole, plus a consecutive one-year sentence for the knife use enhancement and a ...